Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Pennsylvania Prison Legal Mail Policy Unconstitutional, Enjoined

by Matt Clarke

On May 3, 2007, a federal court in Pennsylvania found unconstitutional the Pennsylvania Department of Corrections (DOC) mail policy allowing legal mail to be opened outside the presence of prisoners if the pail does not display a prison-issued control number.

Derrick Dale Fontroy, Theodore B. Savage and Aaron Christopher Wheeler, Pennsylvania state prisoners, filed a civil rights lawsuit in federal district court pursuant to 42 U.S.C. § 1983, alleging that the DOC policy allowing mail from attorneys and courts to be opened outside of prisoners' presence if the mail doesn't display a prison-issued control number, DC-ADM 803, § VI.P.2b, violated their First Amendment right to freedom of speech. The DOC countered that the policy was necessary to prevent contraband from entering the prison.

The DOC issues attorneys a control number conditioned on them certifying they will not transmit contraband or anything other than "essential, confidential, attorney-client communication" through the mail. Courts are also issued a control number. Mail displaying a control number is opened in the prisoner's presence. Mail without a control number is treated as regular mail and opened outside the prisoner's presence in the prison mail room.

According to the defendants, this policy is a reaction to an escape which occurred in 1999. However, the DOC's investigation could not determine how a security screwdriver tip and hacksaw blade used in the escape had been smuggled into the prison. It concluded that the escape tools had been supplied by other prisoners and delivered to the escaping prisoner by staff and speculated that the tools had been smuggled into the prison using local mail, then hidden in a hollowed out legal document later discovered. The 1999 escape report cataloged less than a dozen incidents of contraband being found in legal mail from 1986 through 1999, most of which was harmless or low-grade contraband such as a greeting card or personal letters. This contraband was discovered using the method predating the control number procedure. The DOC Secretary was unable to cite any security incidents related to opening mail in the prisoner's presence. Three years of operation under the new system also failed to reveal any significant security or safety risk introduced into the prison via legal nail.

Defendants maintained the control number procedure was the result of negotiations with representatives of the prisoners. However, no prisoners were at the negotiations and the groups the DOC negotiated with were lawyer's associations and the ACLU who were representing their own interests, not the prisoners'. Thus, the accommodations were to benefit attorneys, not prisoners.

The court noted that the defendants overlook the obvious fact that contraband will be discovered even in legal mail that is opened in the presence of the prisoner if the inspection procedure for such mail is adhered to. Even the 1999 escape report did not challenge the effectiveness of the inspection procedure, rather it speculated that the policy had not been adhered to. Therefore, the connection between the policy change and rationale for it is tenuous and remote and cannot override the prisoners' First Amendment rights. However, this was not clearly established at the time of the incidents. Therefore, the defendants were entitled to qualified immunity. Thus, Plaintiff's motion for summary was granted in part and an injunction issued against enforcement of the policy. However, the defendant's motion for summary judgment was granted in part on the issue of damages. Attorneys Stephen D. Brown and Teri B. Himbaugh of the Prisoner Rights Panel assisted the pro se plaintiffs at times. See: Fontroy v. Beard, 485 F.Supp.2d 1260 (ND PA 2007).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Fontroy v. Beard